Contents

Background

The plaintiff, Blake Field, is an attorney, author, and member of the State Bar of Nevada. On April 6, 2004, Field filed a complaint against Google asserting a single claim for copyright infringement due to Google's alleged copying and distributing one of his works (Good Tea) that he had previously published on his personal website, www.blakeswriting.com. On May 25, 2004, Field filed an Amended Complaint, stating that Google had infringed on an additional 50 works published by Field on his personal website.

Field sought $2,550,000 in statutory damages ($50,000 for each of the 51 registered copyrighted works) in conjunction with injunctive relief.

The defendant, Google, operates a popular search engine. To enable users to search billions of websites, Google uses an automated program called the "Googlebot." This program crawls the internet looking for new sites to include in its index. Once a site is found the Googlebot creates a "cached" version of the site. The cached version is then included in the search results of its search engine. When a user clicks the link to the cached version, the user can view a "snapshot" of the page as it appeared at the time the Googlebot found the site.

Website creators have the option of preventing the Googlebot from indexing their sites by including a simple code in the HTML. In addition, websites can include code that allows the site to be included in Google's index, but that prevents Google from caching the website.

Field had actual knowledge of the Googlebot. He also was aware of the ways to prevent Google from either listing his site at all or listing it but not providing a link to the cached version. Instead of opting out, however, he chose to allow Google to both index and provide a link to the cached version.

The court held that "Field decided to manufacture a claim for copyright infringement against Google in the hopes of making-money from Google's standard practice." The court then went on to rule in Google's favor on all of its defense theories.

Direct infringement

The court relied on two prior cases (Religious Tech. Ctr. v. Netcom On-Line Comm'n Services Inc. and CoStar Group Inc. v. LoopNet, Inc.) and held that "volitional conduct on the part of the defendant" is required for a showing of direct infringement. In this case, "Google is passive in the process." "Google's computers respond automatically to the user's request." Thus, there was no volitional conduct on Google's behalf and hence no direct infringement.

Implied license

Courts usually do not require a copyright holder to affirmatively take steps to prevent infringement. In this case, however, the court found that the plaintiff had granted Google an implied, nonexclusive license to display the work because of Field’s failure in using meta tags to prevent his site from being cached by Google. This could reasonably be interpreted as a grant of a license for that use and so the courts held that a license for Google to cache the site was implied because Field failed to take the necessary steps when setting up his website.

Estoppel

The court invoked the facts supporting its finding of an implied license to support and reiterate that Field could have prevented the caching, did not do so, and allowed Google to detrimentally rely on the absence of metatags. Had Google known the defendant’s objection to displaying cached versions of its website, it would not have done so.

Fair use

The court applied the 4 statutory factors from 17 U.S.C. 107 and held that Google's caching was fair use. The first factor, "the purpose and character of the use" weighed in Google's favor. The court stated that Google's use was transformative and did not merely supersede Fields use. The court explained that Fields use was to enrich the lives of others through poetry, while Google's use was to facilitate the operation of search engines. The court identified multiple characteristics that distinguished Google's use from Fields including:

Google's use is for archival purposes;

Google's use allows users to track changes in websites;

Google's use allows users to figure out why a particular page resulted from a search.

The court further held that Google's commercial status was of little importance because the Google's use was transformative.

The second factor, "the nature of the copyrighted works" also weighed in favor of Google because the works were available for free on Field's website.

The third factor, "the amount and substantiality of the use" weighed equally for both parties. Although Google cached the entire website, the fact that Field made the works available on his website and the difference in the use of the two made this factor neutral.

The fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work" weighed in favor of Google. There was no market for Field's works and the caching did not impact any potential market for his works.

The court considered an additional factor, "Google's good faith in operating its system cache," which favored fair use. Google used industry standard procedures that allowed website operators to prevent caching. Google promptly removed the caches to Field's work when it learned that Field did not want them.

DMCA safe harbor

Finally, the court held that Google qualified for the Digital Millennium Copyright Act's safe harbor provisions, which states that “[a] service provider shall not be liable for monetary relief . . . for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider.”

References

: court order hosted at Stanford

, 17 U.S.C. §512(b)

This article was sourced from Creative Commons Attribution-ShareAlike License; additional terms may apply. World Heritage Encyclopedia content is assembled from numerous content providers, Open Access Publishing, and in compliance with The Fair Access to Science and Technology Research Act (FASTR), Wikimedia Foundation, Inc., Public Library of Science, The Encyclopedia of Life, Open Book Publishers (OBP), PubMed, U.S. National Library of Medicine, National Center for Biotechnology Information, U.S. National Library of Medicine, National Institutes of Health (NIH), U.S. Department of Health & Human Services, and USA.gov, which sources content from all federal, state, local, tribal, and territorial government publication portals (.gov, .mil, .edu). Funding for USA.gov and content contributors is made possible from the U.S. Congress, E-Government Act of 2002.

Crowd sourced content that is contributed to World Heritage Encyclopedia is peer reviewed and edited by our editorial staff to ensure quality scholarly research articles.

By using this site, you agree to the Terms of Use and Privacy Policy. World Heritage Encyclopedia™ is a registered trademark of the World Public Library Association, a non-profit organization.